The opinion of the court was delivered by: WHIPPLE
J.A. and M.M. are recipients of social security benefits in the form of Aid to Families with Dependent Children (AFDC), 42 U.S.C. § 601 et seq. They both have been previously convicted of a criminal fraud practiced on the Bergen County Welfare Board (the Board) by their deliberately misstating their income sources when qualifying for AFDC benefits. Following their convictions, the Board invoked N.J.S.A. 44:7-32 and the administrative procedures thereunder which permit the County Welfare Board, at its discretion, to remove from the AFDC Program any recipients who have been criminally convicted of Welfare fraud.
In a letter opinion of October 29, 1973, this Court preliminarily enjoined the actions of the Board pending an adjudication of the constitutionality of the New Jersey Statute. These plaintiffs now appear before this Court seeking that adjudication pursuant to Fed.R.Civ.P. 56 and the issuance of an injunction pursuant to Fed.R.Civ.P. 65 permanently restraining the enforcement of N.J.S.A. 44:7-32.
The New Jersey Statute provides:
Any person who, by means of a false statement, or false representation, or by impersonation, or other fraudulent device, obtains or attempts to obtain, or aids or abets, any person to obtain funds under this chapter to which he is not entitled, or a larger amount of assistance than that to which he is justly entitled, or payment of any forfeited installment grant; or knowingly aids or abets in buying, or in any way disposing of, the property of an applicant without the consent of the county welfare board, shall be guilty of a misdemeanor and punished accordingly. If such person be himself an applicant or recipient of old age assistance, his application may be denied or his grant withdrawn, and future grants denied at the discretion of the board.
It is the last sentence of this Statute that the plaintiffs seek to have declared unconstitutional because it establishes a standard of eligibility inconsistent with the Social Security Act and therefore invalid under the weight of the Supremacy Clause of the United States Constitution.
In this Court's letter opinion of October 29, 1973, it ruled that plaintiffs had demonstrated the potential irreparable harm and ultimate probability of success prerequisite to the issuance of the preliminary injunction. Tully v. Mott Supermarkets, Inc., 337 F. Supp. 834 (D.N.J.1972). As welfare recipients, threatened with the imminent loss of their benefits, they would, by definition, be exposed to immediate and "brutal need" clearly causing them irreparable harm. Goldberg v. Kelly, 397 U.S. 254, 261, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). They also had demonstrated their ultimate probability of success in this cause by alleging the constitutional invalidity of the New Jersey Statute because it conflicted both with the Social Security Act and with the regulations promulgated thereunder viz. 45 C.F.R. § 233.20(a)(3)(ii)(d). Because this statutory conflict did not raise constitutional issues which required the convocation of a three-judge court, this Court asserted jurisdiction to try the issue sitting as a single district judge. Swift and Co. v. Wickham, 382 U.S. 111, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965). Since that time one of the federal regulations on which the plaintiffs and this Court expressly relied has been significantly amended and the defendants have raised serious and new issues concerning this Court's jurisdiction. Since any decision of this Court would be a nullity if its jurisdiction has not properly been invoked, I will turn first to the jurisdictional question.
In their moving papers, plaintiffs assert that this Court may properly maintain jurisdiction over the cause pursuant to 28 U.S.C. §§ 1331 and 1343. They also allege that the amount in controversy between the parties exceeds $10,000. The defendants, however, now challenge this latter assertion and contend that the amount in dispute between the parties is no more than $74. per month for J.A. and $70. per month for M.M. As a result, the direct monetary impact to each of these plaintiffs falls far under the $10,000. amount in controversy prerequisite to this Court's assertion of jurisdiction pursuant to § 1331. It is also argued by the defendants that all other members of the class which J.A. and M.M. represent likewise fail to meet this $10,000. amount and as a result this Court must decline to exercise its jurisdiction since the claims of all class members must individually rise to this jurisdictional amount before the Court may act. Zahn v. International Paper Co., 414 U.S. 291, 94 S. Ct. 505, 38 L. Ed. 2d 511 (1973); Snyder v. Harris, 394 U.S. 332, 89 S. Ct. 1053, 22 L. Ed. 2d 319 (1969).
The original jurisdiction of this Court, however, may be invoked without reference to amount in controversy pursuant to 28 U.S.C. § 1343 in any civil action commenced:
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States . . . .
In the instant complaint, the plaintiffs allege that the New Jersey Statute does violate rights secured to them by the Constitution of the United States viz. violation of the due process clause of the Fourteenth Amendment and the double jeopardy provision of the Fifth Amendment. Such allegations clothe this Court with the original jurisdiction pursuant to § 1343 to address these issues and also enable it to exercise pendent jurisdiction over the alleged statutory conflict between the New Jersey Statute and the Social Security Act. Hagans v. Lavine, 415 U.S.  at 538, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974); California Human Resources Department v. Java, 402 U.S. 121, 91 S. Ct. 1347, 28 L. Ed. 2d 666 (1971); and United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966).
Although the defendants concede that a district judge may exercise pendent jurisdiction over a federal statutory claim when constitutional issues are also involved, they argue, however, that such an exercise of pendent jurisdiction can only be properly invoked when the constitutional issues are substantial and must be declined when the constitutional issues are, like those in the instant case, "so attenuated and unsubstantial as to be absolutely devoid of merit." Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, 24 S. Ct. 553, 557, 48 L. Ed. 795 (1904) or "obviously frivolous," Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S. Ct. 326, 54 L. Ed. 482 (1910).
The test for substantiality was recently reviewed and restated in Hagans v. Lavine, supra, 415 U.S. at 518 and 537-38, 94 S. Ct. 1372, 39 L. Ed. 2d 577. Within the jurisdictional context, substantiality is a legal term of art which characterizes constitutional claims insubstantial if, ". . . prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial. . . . A claim is insubstantial only if '"its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy."'" This test is a stringent one and calls for the exercise of federal jurisdiction whenever some colorable doubt concerning the validity ...